Studied by 6 people
murder
“the unlawful killing of a reasonable creature in being under the king’s peace with malice aforethought”
the actus reus of murder
the unlawful killing of a reasonable creature in being under the king’s peace
murder: unlawful killing
the killing is against the law. sometimes it can be lawful e.g: doctors (Re A), in the army or in self defence (Martin)
the victim must die (factual and legal causation must be proved)
murder: intervening acts
there must be no intervening acts that break the chain of causation e.g: egg shell skull (Blaue), bad medical care (Jordan, third party involvement (Malcherek) or v’s free will (Kennedy)
murder: reasonable creature in being
a human, not a foetus (Ag Ref). the victim has to be “independent from the mother” and not brain dead either
murder: under the kings peace
not in wartime
murder: mens rea
malice aforethought
this means intention to kill (express malice) or cause gbh (implied malice) (Vickers)
the intention can be indirect (Woollin) meaning d foresees death/gbh as virtually certain
intention can also be direct - d wants the end result to happen
MOHAN
what type of defence is loss of control
partial - reduces murder to manslaughter if successful
where does the defence of loss of control come from
Section 54 (1) of the Coroners and Justice Act 2009
loss of control: element one
d must suffer a loss of control
this must be a total loss of control and doesn’t have to be sudden, but revenge is not considered a LoC (Jewell)
loss of control: element two
the loss of control must come from a qualifying trigger
these come under Section 55 and has to be either:
a. a fear of serious violence (Ward - to yourself or another person)
OR
b. things said it done are of extremely grace character and give d a justifiable sense of being seriously wronged (Zebedee)
loss of control: what is not a qualifying trigger?
sexual infidelity alone (Clinton)
loss of control: element three
a person of d’s age and sex with a normal degree of tolerance and self restraint and in d’s circumstances would have acted in the same or a similar way to d (Christian)
being drunk is not a relevant circumstance and neither is having a bad temper
what type of defence is diminished responsibility?
a special defence and a partial defence
d has to prove DR on the balance of probability and it will reduce murder to manslaughter if successful
where does diminished responsibility come from?
Section 52 of the Coroners and Justice Act 2009
diminished responsibility: element one
d must suffer from an abnormality of mental functioning from a recognised medical condition
must be a condition recognised by the WHO eg depression, battered spouse syndrome (Ahluwalia), paranoid personality disorder (Squelch)
diminished responsibility: who defined element one
Byrne: an abnormality is “a state of mind that a reasonable man would find abnormal”
diminished responsibility: element two
the abnormality must substantially impair d’s ability to understand the nature of their conduct e.g: delusions, form a rational judgement e.g. schizophrenia or exercise self control e.g sexual psychopathy
diminished responsibility: what does “substantially” mean
Golds: doesn’t have to be a total impairment but it must be more than minimal
diminished responsibility: IF RELEVENT IN SCENARIO
if d is just intoxicated, they will not receive the defence
however, if d has been diagnosed with ADS, they may be granted the defence is the alcohol has damaged their brain (Wood)
diminished responsibility: element three
the abnormality must provide an explanation for the killing
in other words, it must be the cause of the killing
diminishes responsibility: abnormality + intoxication
if d is intoxicated AND has an abnormality, the jury then have to decide whether d would have killed without the alcohol (Dietschmann)
what is an attempted crime
when d tries to and intends to commit the crime, but fails
where do attempted crimes come from
Section 1 of the Criminal Attempts Act 1981
attempted crimes: actus reus
d commits an act that is more than merely preparatory (MTMP)
attempted crimes: what does MTMP mean
that d has done more than just prepare e.g Jones
attempted crimes: how is MTMP defined (2)?
Gullefer: has d has embarked on the crime proper?
Geddes: has d moved from planning to execution?
attempted crimes: mens rea
intention to commit the offence
MOHAN
attempted crimes: intention/recklessness
conditional intent is still intent (AG Ref)
recklessness isn’t enough (Millard and Vernon), but has been used in specific, rare cases (Khan and Others)
attempted crimes: IF RELEVANT
the mr for attempted murder had to be intentional to kill (White), not the intention to cause gbh
attempted crimes: final point - Shivpuri
d can be guilty of attempting an impossible crime (Shivpuri)
what is UDAM
unlawful dangerous act manslaughter
type of involuntary manslaughter (Larkin)
UDAM: element one
d must commit an unlawful act
must be a positive act and not an omission (Lowe)
must be criminal (Franklin)
unlawful act can be directed at property (Goodfellow)
UDAM: element two
the unlawful act must be dangerous
The Church Test “a sober and reasonable person would foresee the risk of some harm, albeit not serious harm”
UDAM: what does harm mean
physical harm, however, fear is included but only if it’s obvious that the victim is frail
UDAM: element three
the unlawful and dangerous act must cause death
factual and legal causation must be established
the but for test (white/pagett)
kimsey
UDAM: IF RELEVANT (intervening acts)
must not be any intervening acts that break the chain of causation e.g pre existing medical condition (Blaue), bad medical care (Jordan), v’s free will (Kennedy), third party involvement (Malcherek)
UDAM: element four
d must have the men’s rea for the unlawful act (Newbury + Jones) and not the death
GNM: element one
d must owe v a duty of care e.g doctor patient (Adamako - contractual) and d still owes a duty even if their activity is illegal (Wacker)
GNM: element two
d breached their duty of care - d has failed to meet the standard of a reasonable person (doctor to a reasonable doctor - Bateman, Adomako)
GNM: element three
at the time of the breach, there was a serious and obvious risk of death (Broughton)
it has to be a risk of death and not serious injury (Misra), obvious means it’s a clear risk that is immediately apparent (Rose)
GNM: element four
it was reasonably foreseeable at the time of the breach that there was a serious and obvious risk of death
GNM: element five
the breach must cause death
factual (White) and legal causation must be proved (Kimsey)
there mustn’t be any intervening acts e.g: pre existing medical condition (Blaue), bad medical care (Jordan) etc etc
GNM: element six
the breach is so gross that it’s criminal and not civil
gross means ‘so bad’
Adomako described it as “abysmal” and Bateman says it’s behaviour that shows such disregard for the life and safety of others as to be deserving of punishment
where does assault come from?
section 39 of the criminal justice act 1988
how is assault defined?
“d intentionally or recklessly causes v to apprehend immediate unlawful violence”
assault: actus reus
d causes v to apprehend immediate, unlawful violence
assault: apprehend
apprehend means that v fears or expects violence
assault can involve an action like raising a fist, words alone (Constanza), silence can also amount to an assault (Ireland)
assault: immediate + negating
smith defined immediate as imminent
weds can negate an assault (Light was convicted of assault, Tuberville wasn’t)
assault: men’s rea
intention or subjective recklessness
MOHAN + CUNNINGHAM
where does battery come from?
section 39 of the criminal justice act 1988
how is battery defined?
d intentionally or recklessly applies unlawful physical force to another
battery: actus reus
d applies unlawful physical force to another
battery: force
force means the slightest touching (Collins and Wilcock), clothes (Thomas)
force can be indirect - d doesn’t need to touch v (K)
battery: 6th and 7th point
battery can be a continuing act (Fagan)
can also be committed by an omission (Santa Bermudez)
battery: mens rea
intention or subjective recklessness
MOHAN + CUNNINGHAM
where does ABH come from?
section 47 of the offences against the persons act 1861
ABH: actus reus
assault or battery occasioning actual bodily harm
how is ABH defined?
miller: any hurt or injury calculated to interfere with v’s health or comfort
ABH: what classes as ABH?
bodily includes the mind (Chan Fook)
cutting hair is ABH (Smith)
temporary loss of consciousness (T)
silent phone calls (Ireland)
can be indirect (Roberts)
ABH: mens rea
only need to prove the mens rea for an assault or battery - there’s no need to prove that d intended or was reckless as to the ABH
where does S20 GBH come from?
section 20 of the offences against the persons act 1861
what is the definition of S20 GBH?
d maliciously wounds or inflicts grievous bodily harm
S20 GBH: actus reus
d wounds or inflicts grievous bodily harm
S20 GBH: define wound
a wound is a break in the continuity of the skin (Eisenhower)
S20 GBH: define “inflicting grievous bodily harm”
inflicting means causing
grievous means serious harm (Saunders)
bodily includes the mind (Burstow)
S20 GBH: bruising a baby
Bolton says you must consider who the victim is when looking at how serious the harm is
S20 GBH: extended…
it’s been extended to include STIs (Dica-HIV), (Golding)-herpes
GBH doesn’t need to be life threatening
S20 GBH: mens rea
maliciously - d intends some harm or is reckless as to some harm
d foresees the risk of some harm, but takes the risk anyway - CUNNINGHAM
where does S18 GBH come from?
section 18 of the offences against the persons act 1861
S18 GBH: actus reus
wounding or causing grievous bodily harm
S18 GBH: wound
a wound is a break in the continuity of the skin (Eisenhower)
S18 GBH: what is GBH?
grievous means serious (Saunders), now includes mental harm (Burstow)
S18 GBH: bruising a baby
Bollom says you must consider who the victim is when looking at how serious the harm is
S18 GBH: extended….
S18 has been extended to include STIs (Dica-HIV) (Golding-herpes)
GBH doesn’t have to be life threatening
S18 GBH: mens rea
d must intend serious harm
MOHAN
where does theft come from?
Section one of the Theft Act 1968
how is theft defined?
d dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it
what is the actus reus of theft?
d appropriates property belonging to another
what is section 3 of the theft act
appropriation: any assumption of the rights of the owner
d only needs to assume one of the rights (Morris, Anderton) - the moment d assumes a right E.g. touching, they have appropriated (Gomez)
appropriation - if relevant
accepting a gift from a vulnerable person can be considered an appropriation (Hinks), it can also be an appropriation even if the owner consents (Lawrence)
what is section 4 of the theft act?
property: money and all other property real and personal including things in action and other intangible property
theft: property - if relevant
information is not property (Oxford v Miss), wild flowers are not property, but flowers to sell are, wild animals aren’t property, but if they’re tamed, they are
what is section 5 of the theft act?
belonging to another: includes those in possession or control of the property
d can be guilty of stealing their own property (Turner)
theft: BTA - if relevant
bins - Ricketts, money for a particular purpose - Davidge, d must restore a mistake (AG Ref)
what is the mens rea of theft?
SECTION 2
dishonestly: the test is objective (Ivey, Barton and Booth) - is d dishonest by the standard of a reasonable honest person?
d is not dishonest if they: believe they have a legal right to the property (S2 (1) (a)), the owner would consent to the taking (S2 (1) (b)), or they have taken reasonable steps to find the owner (S2 (1) (c).
what is section 6 of the theft act?
d must intend to permanently deprive the other of the property - borrowing an item and reducing its value is equivalent to an outright taking (Lloyd)
treating an item as your own to dispose of regardless of the others’ rights also falls under section 6
where does robbery come from?
section 8 of the Theft Act 1968
what is the actus reus of robbery?
the actus reus of theft must be present - if there’s no theft, there’s no robbery (Robinson) - d must appropriate property belonging to another
robbery: force
the threat of force must be used in order to steal
d must use force or the threat of force - force can be minimal and is an ordinary word for the jury to decide (Dawson), wrenching is force (Clouden), snatching a cigarette isn’t force (P)
the threat of force can be on any person
robbery: section 8 (force)
force must be used immediately before or at the time of the theft - Lockley says it can be used in order to escape as theft is a continuing act of appropriation
what is the mens rea of robbery?
the MR for theft - d must be dishonest (Barton and Booth) and intend to permanently deprive the other of the property
AND
d must have intention to use force or the threat of force in order to steal - MOHAN
what is the structure of a robbery AO1?
Where does it come from?
Actus reus
Force
Timing of force
Mens rea
where does burglary come from?
Section 9 of the Theft Act 1968
there are two types: section 9(1)(a) and section 9(1)(b)
what is section 9(1)(a) of burglary?
d enters a building or part of a building as a trespasser with intent to steal, cause criminal damage or inflict GBH
burglary: what is the actus reus of section 9(1)(a)?
ENTRY - Ryan says this is an ordinary word and that entry doesn’t have to be substantial or effective
d must enter a building or part of one - Leathley defines a building as having some permanence and being of a considerable size - houseboats are included
part of a building includes going behind a counter (Walkington)
what is the mens rea of burglary?
they must know or be reckless as to the trespassing (Collins), they must also intend the ulterior offence of theft, GBH or criminal damage
burglary: what is the difference between section 9(1)(a) and section 9(1)(b)?
section 9(1)(a) - d doesn’t have to even attempt one of those three crimes, but does have to have formed the intention before entering
section 9(1)(b) - d has already entered as a trespasser and then forms intent to commit GBH or theft - they must at least attempt the theft or GBH, doesn’t include criminal damage
what’s the structure of burglary AO1?
Where does it come from + 2 types
Section 9 (1)(a) + actus reus
Enter a building
Trespasser
Mens rea
Difference between a and b
Note 
Flashcard (20)